D. Additional Consumer Demand
2. The Impact on Demand in a World of
An employer may worry that adopting the mark will promote a backlash of reduced demand. The very hostility toward gay, lesbian, and bisexual people that makes the protections of the mark valuable could also work against the mark. Opponents of gay rights can read product labels as well as allies, and some companies may refuse to use the mark out of fear of boy
cotts. But before considering the impact of boycotts, we first explore how the mark might work in a world with a kind of "acoustic separation" -that is, a world in which the proponents of gay rights learn of a firm's adoption, but the opponents of equality do not.126
The benchmark of "acoustic separation" is not as outlandish as it might first appear. The kosher symbol provides one possible illustration. The
"U"
encircled by an "O" is so innocuous that many anti-Semites miss the signal, even though they might wish to punish companies that affirmatively market products to Jewish consumers. 121 The Fair Employment mark proposed here would be similarly opaque. For consumers "in the know," the mark could create incentives to buy particular products. But there is nothing about the appearance of the mark as proposed to tie it to gay rights or gay people gen
erally. More explicitly "gay" symbols-a pink triangle, a rainbow flag, or the Greek letter lambda-would certainly be more transparent: even con
sumers who had never heard of the mark would know that the company using the symbol is positioning itself in sympathy with the gay community.
But this more explicit positioning would also run the risk of alienating con
sumers who are hostile to gay rights (who will react to an explicitly "gay"
symbol but not to a neutral one).
Moreover, an employer's adoption of the license gives the employer the option, but not the duty, to display the mark. The mark need not be dis
played on every product or indeed on any product. Licensees may choose to display the mark selectively, in contexts where it is more likely that allies will see the mark. They might decide to display the mark only in certain advertisements or in certain states.
By reaching out to ally consumers, the Fair Employment mark promotes a kind of "buycott." It allows equal rights proponents to "vote with their wallets." The time may be particularly ripe to troll for pent up equality
de-1 26. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1 984).
1 27. Occasionally, anti-Semitic groups do call for boycotts of products labeled as kosher, but these movements seem to attract few followers. See, e.g., Anti-Defamation League, Bigotry Over a Beer Label, http://www.adl.org/special_reports/kosher_tax/kosher_coors.asp (last visited Jan. 23, 2006) (noting that some extremist groups call for a boycott of foods and companies that succumb to the "kosher conspiracy").
mand. Progressives who are trapped in "red" states do not have a govern
mental outlet for their political perspective to be heard. Patronizing firms that have privately adopted ENDA-have promised not to discriminate-is a pragmatic way of making progress on employment equality, particularly when local and federal legislatures are not ready to act.
Even opponents of marriage for same-sex couples could be counted as potential consumers of products bearing the mark. A frequent claim of mar
riage opponents is that they believe in treating gay people fairly, but they just think that marriage by definition is between a man and a woman. By embracing the Fair Employment mark either as licensees or consumers, marriage opponents can prove their bona fides as believers in employment equality.
In recent years, gay rights advocates have sometimes flexed the commu
nity's economic muscles. The "gay dollar" is now a recognized-if controversial-phenomenon. By stamping or writing the words "gay dollar"
on ordinary dollar bills, the gay community can tangibly signal the number of dollars that literally pass through gay hands. These marked dollars are meant to demonstrate the spending power of the gay community. The gay community and its supporters have sought to exercise that spending power positively. For example, when voters in Tampa, Florida, enacted an antigay rights ordinance, the Human Rights Task Force of Florida responded by in
stituting a buycott rather than a boycott. The group published a directory of businesses that have "policies in support of gays and lesbians."128 In the first five months of the directory's publication, the list grew from
105
to430
entries.129 Todd Simmons, spokesperson for the Human Rights Task Force of Florida, explained, "We decided on an approach that would empower us economically and politically. The buycott has improved our standing in the community. Businesses and other institutions have changed their policies to get in our book."130
Large companies have launched advertising campaigns targeted to gay consumers, including AT&T, Anheuser-Busch, Apple Computer, Benetton, Philip Morris, Seagram, Sony, and Absolut.131 George Slowik, publisher of
Out
magazine, notes that gay men and lesbians are "an audience not accustomed to being courted, so they're more apt to notice who's supportive and who's not, particularly at this point. The first ones in will reap extra benefits
1 28. Michael Wright, Avoidance Tactics, ATLANTIC MONTHLY, Oct. 1993, at 44, 48.
1 29. Id.
1 30. Id.
1 3 1 . Stuart Elliott, A Sharper View of Gay Consumers, N.Y. TIMES, June 9 , 1 994, at D I . The story of Absolut vodka illustrates the way gay and lesbian consumers demonstrate loyalty to suppor
tive manufacturers and other businesses. Absolut, it seems, was one of the first major labels to advertise in gay publications. According to Rick Dean, Vice President of Overlooked Opinions,
"The gay community tied it back-Absolut was there on the back cover of gay publications before the others, and Absolut vodka is poured at gay bars." Mary Gottschalk, Gay Cachet: Advenisers Get Wise to the Fact that the Gay and Lesbian Community Is a $500 Billion a Year Gold Mine, SAN JosE MERCURY NEWS, Sept. 19, 1993, at IH.
June 2006]
Mark( et)ing Nondiscrimination 1 683
in each category."132 The same sort of loyalty that allows a firm to "reap extra benefits" as the "first one in" could allow the first firms that adopt the mark to reap extra revenue from consumers wishing to show their support for nondiscrimination. 133
M.V. Lee Badgett has examined the three distinct roles that gay, lesbian, and bisexual people can play in an economic system: "consumers," "inves
tors," and "producers."134 Many companies have recognized the LGBT community as an important group of consumers and have developed adver
tising to target this market. The concerns of gay people and their allies as investors are reflected in rating systems that grade companies for their gay
friendliness.135 As producers, LGBT people get some recognition in nondis
crimination policies, statutes, and local ordinances; employee benefit programs; and other incentives offered by companies that wish to recruit talented people, regardless of sexual orientation. Tools like the HRC Corpo
rate Equality Index can help potential employees to identify the companies that respect LGBT people as producers. The Fair Employment mark com
plements these existing strategies as it conveys information about companies' employment practices to a wider audience in a decentralized way. In a sense, the mark completes the circle by allowing gay and nongay consumers to tie their purchasing decisions to the fair treatment of gay and lesbian employees.
A key characteristic of the mark is that it could facilitate heterosexual support for gay rights in ways that need not be public. This could create op
portunities to work for gay rights for a new group of "stealth" supporters
people who, for any number of reasons, are not able or willing to act pub
licly, but who wish at the very least to spend their money responsibly. As heterosexual consumers begin to feel aligned with the cause through their purchasing decisions, other more public forms of support might start to feel comfortable as well. Perhaps most importantly, from simple, every day con
sumer choices, an internal sense of connection to and identification with LGBT people could grow. This internal change might lead nongay people to act-especially to speak up for equality in various contexts. Thus, a small
1 32. Id.
1 33. This brand loyalty is also evident in the travel industry. According to one marketing executive, "All a mainstream company has to do is show up at a gay travel expo and because of brand loyalty, gay and gay-friendly travelers will use them and their business will increase." Stu Glauberman, Gay Tourism: Island Companies Tap a Growing Market, HONOLULU ADVERTISER, Feb. 14, 1 994, at C l .
134. M.V. Lee Badgett, Thinking Homo/Economically, i n OVERCOMING HETEROSEXISM AND HOMOPHOBIA: STRATEGIES THAT WORIC 380 (James T. Sears & Walter L. Williams eds., 1997).
1 35. The Equality Project, for example, "is a consumer, employee and investor advocacy coalition working to support and monitor workplace awareness and adoption of the progressive policies expressed in the Equality Principles as endorsed by leading LGBT organizations." The Equality Project, http://www.equalityproject.org/content/accomp.html (last visited Jan. 29, 2006).
The HRC Corporate Equality Index also helps investors avoid discriminatory companies and direct their money to companies that treat LGBT employees fairly. Human Rights Campaign Foundation, supra note 68.
symbol on a product label could help to mobilize a broader base of hetero
sexual support for LGBT equality.